(Dhananjaya Y. Chandrachud and M.R. Shah, JJ.)
Broosh S Puthiyedam _____________________________ Appellant;
v.
Musaif Shan Muhammad and Another ______________ Respondent(s).
Criminal Appeal No. 676 of 2021 (Arising out of SLP (Crl) No. 1866 of 2020), decided on July 26, 2021
The Order of the court was delivered by
Order
1. Leave granted.
2. This appeal arises from a judgment and order of a Single Judge of the High Court of Kerala dated 11 February 2020 in Crl MC 325 of 2020 (A). The proceedings before the High Court arose out of Case Crime No 488 of 2017 registered at Chalakkudy Police Station. The allegation in the FIR, which was registered at the behest of the appellant, who is a medical doctor, is that the first respondent had represented that he would be in a position to get a seat in the MD Course for the appellant at Kempegowda Institute of Medical Sciences, Bengaluru. An amount of Rs. 2.05 crores is alleged to have been paid for securing admission out of which an amount of Rs. 48.50 lakhs is stated to have been paid through regular banking channels. Despite the payment of the amount, the appellant has alleged that she could not secure admission.
3. The first respondent initially applied for bail in BA No 3543 of 2017 which was declined by an order dated 7 June 2017. Thereafter, bail application, BA No 4287 of 2017 was moved before the High Court in which the Single Judge enlarged the first respondent on bail, subject to the following conditions:
“1. Petitioner shall execute a bond for a sum of Rs. 75,000/- (Rupees Seventy five thousand only) with two sureties for the like sum to the satisfaction of the jurisdictional Court. One of the sureties shall be a close blood relative of the petitioner herein.
2 He shall appear before the Investigating Officer as and when called for.
3. He shall not withdraw any of the amount available in the balance as on today from the above two accounts of the ICICI Bank, until further orders of the trial court.
4. He shall surrender his passport if any, within seven days from the date of release and If he is not holding a passport file an affidavit.
5. He shall not threaten, coerce or intimidate the de facto complainant and the witnesses nor shall he interfere in the process of Investigation.”
(emphasis supplied)
4. An application was moved before the High Court for variation of the condition requiring the surrender of the passport on the ground that the first respondent, who is 24 years of age, wished to go abroad for the purpose of “suitable employment”. The High Court allowed the application. While doing so, the High Court observed that since the first respondent does not have any other criminal antecedents and this was the only case pending against him, it would not be proper to keep him confined to the country without allowing him to travel abroad in search of a job. At the same time, the High Court was of the view that a “stringent condition” can be imposed for modification of the bail condition requiring surrender of the passport. Accordingly, the first respondent was directed to deposit a sum of Rs. 1 lakh with the trial Court on the condition that it would be returned to him only on his returning and after surrendering his passport again.
5. The Special Leave Petition before this Court arose out of the order of the High Court dated 11 February 2020 relaxing the bail condition, as noted above. By an order dated 18 March 2020, notice was issued and while staying the operation and implementation of the judgment of the High Court, the first respondent was directed to surrender his passport to the concerned authorities forthwith. This order has been complied with by the surrender of the passport.
6. Mr. Abraham Mathews, learned counsel appearing on behalf of the appellant, urged two submissions. Firstly, it was urged that no evidence was produced by the first respondent of his having secured a job abroad which necessitated an application before the High Court for relaxation of the bail condition requiring the surrender of the passport. Secondly, it is urged that the condition which has been imposed by the High Court of permitting the first respondent to travel abroad – a deposit of an amount of Rs. 1 lakh – is not sufficient to guarantee that the first respondent would return back to India.
7. On the other hand, Mr. P V Dinesh, learned counsel appearing on behalf of the first respondent, submitted that while it is true that at the time when the first respondent applied for a relaxation of the condition of bail, he had no concrete offer of appointment, as a result of the onset of the pandemic, it had become difficult to pursue such prospects. At the same time, having regard to the age of the first respondent, it has been submitted that he should be permitted to seek employment abroad, subject to the imposition of appropriate terms and conditions.
8. After hearing the rival submissions, we are of the view that the order of the High Court relaxing the above condition of bail needs to be interfered with by this Court and a remand is necessitated. Admittedly, the first respondent did not have any concrete offer of a job in hand for which he desired to travel abroad. No such material was produced before the High Court. That apart, we are of the view that the condition which has been imposed by the High Court for permitting the first respondent to obtain his passport so as to travel abroad, namely, a deposit of Rs. 1 lakh, would not subserve the ends of ensuring his presence at the criminal trial. The High Court has not required either the furnishing of sureties nor appropriate undertakings that would ensure the presence of the first respondent at the trial. Having regard to the above circumstances, the order of the High Court which is impugned in the present appeal is unsustainable. However, having regard to the concerns which have been expressed on behalf of the first respondent by Mr. P V Dinesh, it would be appropriate to remand the matter back to the High Court so as to allow the first respondent to pursue his case for relaxation of the bail conditions. In that regard, we only observe that it would be open to the High Court to consider the application afresh and to determine whether permission should be granted and, if so, subject to such appropriate conditions as may be deemed ft and proper. We have made no findings and observations in that regard.
9. For the above reasons, we set aside the order of the High Court dated 11 February 2020 in Crl MC 325 of 2020 (A) and the proceedings are remitted back to the High Court for fresh determination.
10. The appeal is allowed in the above terms.
11. Pending application, if any, stands disposed of.
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 1866/2020
(Arising out of impugned final judgment and order dated 11-02-2020 in CRLMC No. 325/2020 passed by the High Court of Kerala at Ernakulam)
Broosh S. Puthiyedam.….Petitioner(s)
v.
Musaif Shan Muhammad & Anr.….Respondent(s)
(WITH IA No. 37656/2020 – EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT, IA No. 37655/2020 – EXEMPTION FROM FILING O.T.)
Date : 26-07-2021 This petition was called on for hearing today.
(Before Dhananjaya Y. Chandrachud and M.R. Shah, JJ.)
For Petitioner(s) Mr. Abraham C. Mathews, Adv.
Mr. Mohammed Sadique T.A., AOR
For Respondent(s) Mr. P.V. Dinesh, AOR
Ms. Rashmi Singh, Adv.
Mr. Ashwini Kumar Singh, Adv.
Mr. Bineesh K., Adv.
Mr. Jayan Kuttichakku, Adv.
Mr. Nishe Rajen Shonker, AOR
Ms. Anu K. Joy, Adv.
UPON hearing the counsel the Court made the following
ORDER
12. Leave granted.
13. The appeal is allowed in terms of the signed order.
14. Pending application, if any, stands disposed of.
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